Regina v Alick [2016] SBHC 28; HCSI -CRC 344 of 2015 (18 February 2016)

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 344 of 2015

REGINA

V

Aaron Alick

Hearing: 16-18 February 2016
Judgment: 18 February 2016

Mr. R. B. Talasasa and W. Vaiyu for the Crown
Mr. H. Lawry and D. Kwalai for the Defendant

Palmer CJ.

1. The defendant, Aaron Alick ("the Defendant") is charged with one count of rape contrary to section 137 of the Penal Code. The particulars state that he had unlawful sexual intercourse with the complainant on the 15th of December 2014 at Gwango village, more particularly in the bushy area beside the road.
   
2. The complainant is a young girl of about 16 years old and a student at the time of commission of offence. The defendant was a young man of about 24 years.
   
3. The prosecution's case is that the complainant was accosted at the side of the road by the defendant, carried to the nearby bushes and raped.
   
4. The defence case on the other hand was that any sexual encounter was by consent and by virtue of the fact that they were in a relationship as friends. They submit that the allegations of rape arose by virtue of the fact that the complainant had sought to hide this fact from her family for fear of being beaten. An explanation has sought to be provided in cross-examination as to what may have happened resulting in the allegation of rape being raised by the complainant.
   
5. The Defendant did not give evidence, choosing to maintain his silence and putting the onus on prosecution to prove its case beyond reasonable doubt.
   
6. Prosecution called only two witnesses, the complainant and another witness who told the court what the complainant said to her later that evening of the same day. As well a number of exhibits have been tendered by consent in court, a statement of Daniela Godfree, an aunty who gave evidence of what the complainant told her about the incident, a medical report of the Doctor who carried out an examination of the complainant, a copy of the sketch plan drawn by a police officer in which the victim showed him the scene of the alleged crime and what took place there, and finally the record of interview of the defendant.
   
7. It is for prosecution to prove its case beyond reasonable doubt that any sexual intercourse took place, this is an essential element of the crime that penetration must be proven to have been established, and secondly that it was committed without the consent of the complainant. If any reasonable doubt exists, not just doubt, this must go in favour of the defendant.
   
8. There are two crucial elements in this case that of unlawful sexual intercourse and that it was achieved without her consent.
   
9. This case turns primarily on issues of credibility and reliability of the main crown witness, the complainant.
   
10. I thank learned counsels for their written submissions for that has greatly assisted this court to distil the issues of fact that need to be shifted and ruled upon.
    

Assessment of evidence of the complainant.

11. I have had the opportunity to consider the demeanour of the complainant in court and to assess her evidence.
    
12. While I note that the gist of her evidence is that she was accosted by the defendant on her way back from the store, was seized and held captive by him and carried to a spot where the alleged rape took place, as depicted in the sketch plan drawn by a police officer, when tested under cross examination her demeanor and evidence was riddled with inconsistencies and contradictions, which in my considered view cannot be described as being not insignificant. If there was anything to describe her evidence by, it would be that it was fraught with inconsistencies, uncertainties, confusing and at times incoherent. There was too much variableness in her evidence when tested in cross-examination, which cannot be ignored or overlooked. I agree with learned Counsel Lawry's comment when he sought to describe her evidence as being continually changing.
    
13. I accept submissions of learned Counsel Mr. Lawry, that her evidence about the non-existence of a volleyball court had been clearly contradicted by the evidence of PW2, Irene Sasai who confirmed the existence of a volleyball court.
    
14. I also agree with his submissions and note that she had contradicted herself in her evidence under re-examination by describing a scene, which was new and different to what she had originally showed the recording police officer who drew the sketch. The new spot would seem to have been only a short distance from the main road and not as originally described in her evidence as being about 60 or so meters away. While it may have been possible that the defendant may have been able to carry the complainant for that distance, as referred to by the learned Director of Public Prosecutions, its credibility however has been severely attacked by the new and different spot that was identified by the complainant in re-examination and leaves more questions about where the truth lies in that case.
    
15. I also note inconsistencies in her description of what happened to her skirt whether it was removed by the defendant and put aside as given in evidence, or whether it was pushed up when he sought to have sex with her, as merely shedding more doubt on the credibility of her account, especially when it is contrasted with the assertions of the defendant that it was consensual and bearing in mind the burden of proof on the crown to remove any doubts and ensure that what is alleged is clear, accurate and certain.
    
16. On the issue of whether sexual intercourse took place, that is, that penetration of her vagina actually occurred, it is pertinent to note that in cross examination she had denied that this occurred because he was not able to complete this and so changed to having her suck his penis. While in re-examination she reverted back to saying that penetration was achieved, this has to be weighed against the evidence of the medical report and that of Irene Sasai in which she had told her that because he could not achieve penetration he then got her to suck his penis. Again it is for prosecution to remove any doubts that may have been raised by this inconsistency.
    
17. I also note that the medical report is inconclusive as submitted by learned Counsel Mr. Lawry, neither confirming nor denying whether recent sexual activity had taken place and in particular noting the absence of any abrasions, bruising, lacerations and injuries consistent with any forced entry or sexual penetration.
    
18. I also note the inconsistency in the evidence raised about strangling that took place at the scene of the crime, the presence and use of a knife but in evidence in court denying that this was alleged.
    
19. This brings me to assess the demeanor and credibility of the evidence of the second crown witness, Irene Sasai. I find that her evidence has been successfully challenged as well as being inconsistent and should not be relied on. On one hand she concedes having spoken to the police earlier but when confronted with an earlier statement made on the 5th May 2015, she sought to deny the contents of what she told police and sought to deny her signature as well. It seems to me that either she may have forgotten about what she told the police or that she had simply sought to change her version to suit the evidence of the complainant. I note that she had in fact admitted that when asked in cross-examination. It is difficult to rely on her evidence where it has been demonstrated that there is a real possibility that she had changed her story. On the other hand her description that the complainant was normal and was seen playing volleyball before she came to see her in the evening to be inconsistent with any suggestions of the complainant being subjected to a violent rape.
    
20. I also note the inconsistency in the evidence as contained in the statement of Daniela Godfrey in which she had stated that the complainant had told her that the defendant had pinched her mouth, which the complainant has also denied in cross-examination.
    
21. It is for prosecution to prove its case beyond reasonable doubt that sexual intercourse took place and that it was without consent. Too many inconsistencies and a number of contradictions have been raised in the evidence of the main crown witness and crown case which in this instance have raised more than a reasonable doubt in the mind of this court as to whether sexual intercourse did take place and if so that it was without consent.
    
22. The defence do not have to prove anything and the fact that they have not called any evidence other than to rely on the record of interview cannot be adversely commented upon other than to show what the defence asserts is the truth of what happened that day. Having heard and considered the evidence adduced in this case, I am unable to say that what was stated in that record interview to be untrue or fabricated, but even if that were so, I am still not satisfied that prosecution have successfully removed the reasonable doubt that has been raised in respect of this case.
    
23. I am satisfied the onus of proof has not be discharged and the defendant is entitled to be acquitted of the charge of rape.
    

Orders of the Court:

1. Enter a finding of not guilty and order that the defendant be acquitted herewith.
   

The Court.